Insults and Habitual Offenders

Can a prosecutor insult a defense lawyer at trial?

In the Texas 5th District Court of Appeals case, Gutierrez Jr. v. Texas, the issue known as “going over the shoulder of counsel” is argued. Surprisingly, prosecutors may sometimes throw an insult or two at the defense table. At times an objection can be made and the trial will proceed, but there are few instances where these insults can warrant a mistrial.

In the case mentioned above, the prosecutor told the jury “don’t believe what the defense attorney is saying, he is paid, he has been appointed in this case actually.” The defense counsel objected and moved for mistrial. The objection was sustained but the mistrial was denied.

Here’s why, the case cites Mosley v. State, where the prosecutor said that counsel “attempted to get the jury off the main road and divert the jury” or in so many words called the defense counsel a liar. The court found that the comments were only a little inappropriate because they did not accuse the defense attorneys of lying directly and the comments did not suggest that any evidence was manufactured.

The court concluded that even though some of these comments run the risk of improperly striking at a defendant over the shoulder of counsel, the argument must be made in terms of defense counsel personally, must explicitly call into question defense counsel’s character, the argument must be extreme or manifestly improper, violate a mandatory statute, or inject new facts harmful to the accused. If it does none of these, an objection and asking the court to instruct the jury to disregard is enough to cure the error made.


What is a habitual offender in Texas?

If you are on trial for a felony and have had two felony convictions before, you could be considered a habitual offender in Texas.

Texas Penal Code section 12.42(d) explains the standard. First, you must be on trial for a felony, other than a state jail felony under section 12.35(a). Secondly, your first felony conviction must have occurred before you are convicted of the second. Simply, your second felony must occur after your first felony conviction is final. That is, your first felony trial or plea bargain is over and you are convicted. The State cannot consider you a habitual felon if you were convicted of a second felony before being convicted of your first.

The same goes for the felony you are begin tried for. Your third felony must be committed after the conviction of your second. It’s a bit confusing and can be a brain buster, if you find yourself in this situation give us a call and we can walk you through it.

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